Abstract of “The Anti-Partisan Principle”

Here is the Abstract/Introduction of my new paper (footnotes omitted for ease of reading):

Political parties are essential for constitutional democracy, but there are some unwritten limits on what parties can do. These limits rest largely on constitutional customs that cannot be enforced in court, which means that they are not easy to define and are often in a state of flux. Nevertheless, arguments about partisan acts that are “legal but unconstitutional” have been an integral part of our discourse ever since John Adams named his infamous “Midnight Judges” in 1801. Indeed, some of America’s greatest constitutional precedents, such as the defeat of Franklin Roosevelt’s Court-packing plan in 1937, were set by one of the two parties in the name of self-restraint.

This Article explores the contours of the anti-partisan principle in constitutional law. Much of the analysis centers on conventions in the British sense of that term, which are norms that influence political and institutional action. The precedents come mainly from Congress, and what they show is that there is now an understanding that one party may not: (1) alter the structure of the judiciary in its favor; (2) use its supermajority to purge judges or expel members of Congress from the other party; or (3) seize the presidency or vice-presidency from the other party without winning a presidential election. Some of these taboos were not observed in the nineteenth century, but since then Congress has followed a rule that its constitutional powers may not be used to change the partisan makeup of the three branches.

Anti-partisan customs also play a role within the Supreme Court. These norms are also a product of slow and uneven growth, but today the Justices do not: (1) retire in a presidential election year; (2) openly support political candidates or provide political advice to elected officials; (3) consider a run for office; and (4) base or appear to base their rulings on party considerations. In cases challenging the validity of partisan gerrymandering, some Justices have gone further and said that the Constitution contains a limit on excess partisanship that can be enforced by courts. Though this theory has never been used to strike down a statute, the reasons offered for such a doctrine help illuminate the neutrality traditions that are followed elsewhere.

Most of the legal and political battles waged since President Obama took office involve about the meaning of these anti-partisan conventions. When several presidential nominees were filibustered by Republicans, Senate Democrats contended that the broad use of that convention by the minority party was wrong and responded by creating a new custom to bar similar filibusters. When House Republicans clashed with a Democratic President over raising the debt ceiling in 2011 and in 2013, their procedural disagreement was about whether the use of that lawful tactic was unacceptable in part because it was being done for partisan purposes. And when the Supreme Court was weighing the fate of the Patient Protection and Affordable Care Act, Chief Justice Roberts may have been influenced by the thought that a decision of the Justices appointed by one party to invalidate the signature law of the other party would be viewed as illegitimate even if it were correct. None of these questions raise traditional legal issues. They are problems of constitutional etiquette.

Part I explains how customs patch flawed constitutional text or enforce the text in the absence of judicial review, which are essential tasks with respect to political parties. Part II describes the unwritten norms that limit Congress’s power to select which party should hold crucial federal positions. Part III undertakes a comparable analysis of the Supreme Court and then considers the argument that the Equal Protection Clause and the First Amendment impose formal limits on brazen partisanship. And Part IV reviews some recent constitutional disputes and argues that their resolution reinforced and extended the anti-partisan principle.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.